By Dr. Ken Broda Bahm:
You have your witness on the stand in direct examination. You have finished laying out the positive story that you want to tell, but you have one more thing to do before handing that witness over to the other side: You need to cover the bad stuff. At this stage, you know what your adversary is going to focus on during their cross-examination. If you’re wise, you will get there first, and make sure that both the opposition points and their refutations are previewed in advance.
I have written before about this inoculation approach to persuasion. There is a long line of research showing that it works. Persuasive targets will be less influenced by a message if that message has been preempted. Being primed to think about the flaws in advance helps to build resistance, much like a weakened form of a virus in a vaccine can help to build immunity. In the context of examining a witness, there is also one other benefit: It works not only on the listeners, but on the witness as well. When your witness is confronted with the bad stuff down the road in cross-examination, they will be more confident that they can deal with it because they have already dealt with it in direct examination. So, when you expect to hear a meaningful criticism, it is nearly always better to take the chance to address that in advance. In this post, I will share three intuitive steps for inoculating your witness.
Recognize
The first step is to identify the point that the witness will hear later in cross.
Q: Now, Ms. Smith, were you part of any casual discussions of this candidate via email?
You aren’t creating or introducing anything at this point — that is why I use the word “recognize,” because you are just recognizing what will inevitably be coming in cross. You are also not presenting the full strength version of this argument. While you don’t want jurors to be surprised later that the point is better than they thought, you don’t need to provide every detail of the adversary’s focus: Put it out there, but don’t dwell on it. The propose is just identification.
Respond
The heart of the response is to give the witness an opportunity to provide an answer. That answer should be memorable to the jury, and should also be the lifeline that the witness can return to when pressed again on the same point.
A: Yes, unfortunately, at the end of the day, there were some casual conversations. It was dealt with, because it was unprofessional. But it was also after all of the important decisions had been made.
You want to focus on responses that are simple and clear, and that work to take power away from the point. Overkill does not help, and laying on responses that are too complex or too numerous risks sending the message to jurors that this point is really a big deal. Ultimately, you want to emphasize the opposite: The point is out there, but there is a clear and simple response.
Return
Defense is important, but the thing about defense is that it can be a little…defensive. Of course, if the other side is likely to get mileage out of it, then you want to cover it first. But you don’t want to end with the weak impression that you are just putting out fires. Instead, you want to end on a position of strength. There may be a way to turn the adversary’s argument into a strength, or simply to pivot back to one of your own talking points:
A: And while there are a handful of unprofessional statements in those emails, the complete record of our decision shows that there was a full and fair process, consistent with the company’s policies, and we followed it completely before we made that decision.
For witnesses and examiners, the formula of Recognize, Respond, and Return can be a good mnemonic aid. The bottom line is that you can’t hide from the negative information: Address it, get it out of the way, and then end on a strong point.
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Other Posts on Inoculation:
- Find Your Antidote to Inoculation
- Inoculate by Teaching the Technique and Not Just the Error
- Vaccinate Against Bad Arguments